Jail time for agreeing with a competitor not to solicit or hire their employees? Sounds like fiction, but, under the U.S. Department of Justice’s recent “antitrust guidance for human resource professionals,” such an outcome is a reality that HR professionals (and their companies) need to understand and navigate. Given the DOJ’s recently renewed scrutiny under the Biden administration of “no poach” and “no hire” agreements between competitors, many employers are wondering what legal steps they can take to protect their workforces from unlawful raiding by a competitor.

This article discusses two different options that employers might be able to use to protect their workforces while not running afoul of the DOJ’s guidance. First, employer-employee nonsolicitation agreements, with appropriate durational limitations, remain enforceable in most jurisdictions and provide a good defense to the most common way in which a competitor might poach the workforce of another—using a former employee to solicit coworkers. Second, business torts can help protect an employer from an unlawful raid on their workforce by a competitor, including the business torts of unfair competition and aiding and abetting a breach of duty of loyalty. This combination of tort actions and restrictions on post-employment solicitation of employees provide a multilayered strategy for protecting legitimate business interests and avoiding unfair competition while not violating the DOJ’s guidance.

Background on the DOJ’s Antitrust Guidance for Human Resource Professionals

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